PFAS Litigation Updates

Significant Win for Chemical Manufacturers May Be Reviewed En Banc by Sixth Circuit

Plaintiff Kevin Hardwick, a former firefighter, used firefighting foam containing PFAS, and now his blood contains PFAS. Hardwick sued certain PFAS manufacturers. The district court certified a class comprising essentially every Ohioan with PFAS detectable in their blood. The Sixth Circuit reversed, holding that Hardwick failed to plead that the PFAS in his blood is actually traceable to each named defendant. The panel stated: “Hardwick has not alleged facts supporting a plausible inference that any of these defendants caused these five particular PFAS to end up in his blood. … He elides rather than meets the Supreme Court’s requirements as to pleadings and traceability. Hardwick therefore lacks standing to proceed with his claim.”

The circuit court reviewed the case on interlocutory appeal at the request of the PFAS manufacturer defendants. It reviewed de novo the district court’s finding that Hardwick had standing. In December 2023, Hardwick challenged the panel’s decision in a petition for rehearing en banc, which the defendants opposed.

December 11, 2023 | Hardwick v. 3M Company, et al., No. 22-3765 (6th Cir.).

Ohio Resolves PFAS Litigation Tied to West Virginia Facility

Three chemical manufacturers agreed to pay the State of Ohio $100 million to resolve litigation arising out of claims that the entities caused PFAS contamination at a facility in neighboring Parkersburg, West Virginia. Eighty percent of the settlement will be allocated to restoring natural resources related to the operation of the facility, 16% will be used to address alleged damages caused by PFAS-containing firefighting foam, and the remaining 4% will be put toward mitigation of alleged damage to natural resources. The settlement concludes litigation that began in 2018.

November 29, 2023 | State of Ohio v. E.I. du Pont de Nemours & Co., et al., No. 18OT32  (Ohio Ct. Comm. Pleas).

U.S. Supreme Court Declines Review of PFAS Case

The U.S. Supreme Court denied to review a case that involved questions of when rulings in multidistrict litigation can prevent relitigation of certain issues. DuPont asked the Supreme Court to review a 2–1 ruling from the Sixth Circuit that applied collateral estoppel to bar relitigating settled issues when it upheld PFAS negligence claims against the company, arguing the ruling would cut a critical method to resolve mass tort suits.

November 20, 2023 | E.I. du Pont de Nemours & Co. v. Abbott, No. 23-13 (U.S.).

Chemical Companies’ Fight to Protect Settlement Terms Continues

The Georgia Court of Appeals granted an emergency motion filed by manufacturers seeking a stay of a trial court order requiring the disclosure of financial terms of settlement agreements resolving claims that the entities were responsible for contaminating the City of Rome, Georgia’s drinking water with PFAS. As part of their motion, the companies argued that the trial court erred by failing to conclude that the financial terms were “trade secrets” excluded from disclosure under the Georgia Open Records Act. These entities further argued that, if a stay were not issued, the financial terms would be disclosed and their appeal would be moot. The Georgia Court of Appeals granted the motion without explanation.

November 20, 2023 | E.I. du Pont Nemours & Co., et al. v. City of Rome, Georgia, et al., No. A24E0033 (Ga. Ct. App.).

Forever Chemicals in Cat Food?

In this putative class action, pet owner plaintiffs allege that Purina falsely advertises its cat food products as healthy when the cat food allegedly contains PFAS because of the packaging. For example, the Cat Chow Complete Chicken product says it contains the “cornerstones of nutrition,” is “100% Complete & Balanced,” and is “formulated to help cats live a long, healthy life.” The plaintiffs allege that laboratory test results show that Purina’s packaging contains more PFAS than other pet food brands.

November 17, 2023 | Kueck v. Nestlé Purina PetCare Co., No. 3:23-cv-05962 (N.D. Cal.).